United States District Court, N.D. Mississippi, Western Division
MICHAEL P. MILLS, Chief District Judge.
This matter comes before the court on the pro se petition of Marcus Jermaine Johnson for a writ of habeas corpus under 28 U.S.C. § 2254. The state has moved to dismiss the petition as untimely filed, and the petitioner has responded. The matter is ripe for review. For the reasons set forth below, the instant petition for a writ of habeas corpus shall be DISMISSED with prejudice as untimely filed under 28 U.S.C. § 2244(d).
Facts and Procedural Posture
The petitioner, Marcus Johnson, is in the custody of the Mississippi Department of Corrections and is currently housed at the Walnut Grove Correctional Facility in Walnut Grove, Mississippi. Johnson pled guilty to one count of felony aggravated assault domestic violence (Miss. Code Ann. § 97-3-7(2) and (4)) in the Circuit Court of Montgomery County, Mississippi. He was sentenced on April 8, 2008, to serve twenty years in the custody of the Mississippi Department of Corrections. By statute, there is no direct appeal from a guilty plea. See MISS. CODE ANN. § 99-35-101.
Johnson filed a motion for post-conviction relief in the Montgomery County Circuit Court on October 5, 2010 (signed October 1, 2010). ECF, Doc. 1-1, pp. 43-53. He amended his Post-Conviction Relief motion on March 16, 2011. He filed a mandamus petition in the Mississippi Supreme Court on October 8, 2012, which the court dismissed for lack of information and documentation. On October 31, 2012, Johnson filed another mandamus petition in the Mississippi Supreme Court, which the Court dismissed as moot, finding that the PCR motion had been denied by the circuit court on October 12, 2012. (Order from Miss. Sup.Ct. Case no. 2012-M-01641) and (Order from Circuit Court). The records of the Mississippi Supreme Court show that the petitioner has not filed an appeal of the denial of his motion for post-conviction relief in that court.
One-Year Limitations Period
Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or the laws of the United States is removed, if the applicant was prevented from filing by such State action;
C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(d) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...